Fain v. Duff

Citation488 F.2d 218
Decision Date01 March 1974
Docket NumberNo. 73-1933.,73-1933.
PartiesRoger FAIN, Petitioner-Appellee, v. Ed DUFF, etc., Respondent-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

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Robert L. Shevin, Atty. Gen., Raymond L. Marky, Asst. Atty. Gen., Tallahassee, Fla., John W. Tanner, Asst. State Atty., 7th Judicial Circuit of Fla., Daytona Beach, Fla., for respondent-appellee.

Philip H. Elliott, Jr., Daytona Beach, Fla., Thomas A. Goldsmith, San Francisco, Cal., for petitioner-appellee.

Before GEWIN, AINSWORTH and MORGAN, Circuit Judges.

Rehearing En Banc Denied March 1, 1974.

LEWIS R. MORGAN, Circuit Judge:

Sixteen-year-old Roger Fain was arrested November 12, 1970, in Volusia County, Florida, for breaking into the home of a woman and raping her. Eleven days later Fain was adjudged delinquent by a juvenile court. Nine days after the juvenile proceedings, a grand jury returned an indictment charging Fain with the criminal offense of rape. After the state courts of Florida rejected Fain's argument that prosecution of him for rape would violate the former jeopardy clause of the Fifth Amendment to the Constitution, Fain obtained a writ of habeas corpus from the United States District Court for the Middle District of Florida. The state now appeals the granting of the writ. We affirm.

Although this case involves complicated constitutional and statutory questions, the facts are simple and undisputed. On November 12, 1970, Roger Fain, then aged sixteen years and nine months, was arrested by Ormond Beach police officers for the alleged rape the day before of Mary Frances Oswald in Volusia County, Florida.1 Five days later, a counselor of the juvenile court system filed a petition in juvenile court alleging that Fain was a delinquent child by reason of having assaulted and raped Mrs. Oswald.2 On November 23, 1970, a hearing was held in the Volusia County Juvenile Court, during which an assistant state attorney appeared and urged the judge to waive jurisdiction and certify the case to the circuit court.3 After hearing argument on this question, the judge declined to waive jurisdiction, found Fain delinquent and committed him to the Division of Youth Services for an indeterminate period not to extend beyond his 21st birthday.4 Since November 23, 1970, Fain has remained in the custody of the Division of Youth Services at the Dozier School for Boys.

On December 1, 1970, the state attorney for the Seventh Judicial Circuit urged the juvenile court judge to stay the issuance or execution of its order of commitment; the judge did not do so. The next day, an indictment was returned alleging the same acts on which the delinquency adjudication was based.5 Two weeks later, on December 17, 1970, the state attorney urged the juvenile court to relinquish jurisdiction.6

In the circuit court, Circuit Judge Melton of the Seventh Judicial Circuit dismissed the indictment against Fain on January 7, 1971, on the grounds of former jeopardy. The state appealed to the First District Court of Appeal, which reversed Judge Melton's ruling on August 17, 1971. State v. R. E. F., 251 So.2d 672 (Fla.App.1971). The Supreme Court of Florida affirmed the court of appeal, but stayed its mandate to allow Fain to pursue any remedies he might have in federal court. R. E. F. v. State, 265 So.2d 701 (Fla.1972). Fain filed a petition for a writ of habeas corpus in the Middle District of Florida, and a hearing was held before the U.S. District Court on November 21, 1972. On January 15, 1973, the district court issued the writ requested by Fain. The state filed a notice of appeal February 7, 1973.

Three questions confront us in this appeal:

1. Did the district court have jurisdiction to entertain Fain's application for a writ of habeas corpus?

2. Was the district court correct in determining that the actions of the State of Florida violate the former jeopardy clause of the Fifth Amendment, made applicable to the states by the Fourteenth Amendment?7

3. Was the district court correct in determining that the actions of the State of Florida violate the Fourteenth Amendment and notions of fundamental fairness?

I

As in all cases in federal court, the first question to which we must address ourselves is that of jurisdiction provided by a statute, for if there is no jurisdiction, a determination of the merits of a case is futile. Ex parte McCardle, 74 U.S. (7 Wall.) 506, 19 L.Ed. 264 (1869); Ex parte Bollman, 8 U.S. (4 Cranch) 75, 2 L.Ed. 554 (1807). In this case, Fain asserts jurisdiction under 28 U.S.C. § 2241.8 We must therefore determine if that statute permits the district court to grant the writ. The statute itself contains no definition of the term habeas corpus. To ascertain its meaning and the appropriate use of the writ in federal courts, recourse must be had to the common law, from which the term was drawn. McNally v. Hill, 293 U.S. 131, 136 (1934). The traditional use of the Great Writ was to inquire into the detention of a prisoner for the purpose of commanding his release if that detention was contrary to the law. See Developments in the Law—Federal Habeas Corpus, 83 Harv.L.Rev. 1038 (1970) and H. Hart and H. Wechsler, The Federal Courts and the Federal System, 2d Ed. (1973), 1426-29. The purpose of this writ is not to examine the validity of any judgment, but merely to inquire into the legality of a detention. Fay v. Noia, 372 U.S. 391, 430, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). Thus, an obvious prerequisite to the issuance of a writ is detention, or custody.

Notwithstanding the traditional requirement that the petitioner must be in custody when the writ issues, McNally v. Hill, supra, the law in this country has been considerably broadened in this area. This most significant relaxation of the detention standard occurred in Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968). In Peyton, the Supreme Court permitted a prisoner to attack the second of two consecutive sentences before the first had expired. Although the petitioner had not yet begun to serve the allegedly illegal sentence, the Court held that practical considerations and the history of the writ as a means of prompt adjudication permitted the district court to consider the petition at the time it was presented. Id. at 62-63, 88 S.Ct. 1549.

In this case we have a situation analogous to the consecutive sentence problem of Peyton. Fain is now committed to the custody of the juvenile authorities, where he will remain even after he obtains the writ. But uncontested evidence introduced at the hearing in district court indicated that the conditions of his commitment would be substantially different absent the rape indictment.

Fain is now incarcerated at the Dozier School for Boys in Marianna, Florida. The Division of Youth Services, however, has the authority to release him when it would benefit Fain and society to do so. Mr. Lenox E. Williams, superintendent of the school, testified at the hearing that, "If Fain could have left the institution without the threat of being thrown in jail . . . we would have let him go." The district court found "that the juvenile authorities are of the opinion that petitioner has been rehabilitated and the authorities are prepared to release him but for the probability that his release from the Dozier School for Boys would simply result in his re-arrest by Volusia County authorities on the strength of the judgment of the Florida Supreme Court. footnote omitted."

Thus, Fain's "custody" is even more apparent than that of Peyton, since the existence of the outstanding indictment not merely threatens him with more incarceration in the future, it has a substantial effect on his present circumstances. In fact, the indictment is the sole cause of his present confinement.

The fact that Fain is in the custody of the juvenile authorities of the State of Florida, coupled with the likelihood of his being released in the discretion of those authorities, convinces us that the custody requirement of § 2241 has been amply complied with in this case. This holding does not in any way involve a "stretching" of the custody requirement of the statute, for Fain's liberty is restrained in a manner which can and should be basis for issuance of the writ under even the most traditional concepts of custody. Cf. Hensley v. Municipal Court, 411 U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973).

The state argues that Fain must also demonstrate that his confinement is pursuant to the judgment of a state court.9 But Fain nowhere alleges that his petition falls within § 2254 and, in fact, it is obvious that it does not. Section 2254 was enacted to regulate the use of habeas corpus for collateral attack on state criminal proceedings. It has no relevance to this case. One of the traditional roles of the writ is to prevent lawless denials of liberty, whether perpetrated by the executive, legislative or judicial branches of the government, or the military.10 Traditionally, the writ has had a very wide usage in testing all kinds of lawless government actions. Its use as a post-conviction remedy for wrongs perpetrated during criminal trials is relatively recent. In fact, the statute allowing federal habeas corpus attack on state criminal convictions was not even in existence prior to 1867.11 In Ex parte Royall, 117 U.S. 241, 65 S.Ct. 734, 29 L.Ed. 868 (1886), Justice Harlan recognized the power of the federal court to release a prisoner who had not undergone a state trial. Although relief was denied because of a failure to exhaust the processes of the state, the case reaffirms the traditional notion that the federal remedy in habeas corpus is available to vindicate constitutional rights of citizens illegally held in custody. The Supreme Court only last term reaffirmed this traditional use of the writ. Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973). In Braden the writ...

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